Pajnu Mal and Others vs S.L. Keshwari and Others

I.D. Dua, C.J.

(1) This appeal under s. 39 of the Delhi Rent Control Act of 1958 questions the correctness of the decision of the Rent Control Tribunal dated 1st December, 1967 dismissing the appeal of the present appellants from the order of the Additional Rent Controller, Delhi, dated 17th September, 1967, ordering eviction of the tenants in favor of Smt. S.L. Keshwani on the ground that the premises were bona fide required for the residence of the owner landlady and her family members dependent upon her.

(2) The eviction proceedings were initiated on two grounds, but the other ground of subletting was not sustained.

(3) On appeal, it was conceded on behalf of the tenants that the premises had been let out to them for residential purposes and also that the landlady was the owner thereof, with the result that the only question for determination was whether the landlady required the premises in dispute for her own residence and the residence of the members of her family dependent on her. After considering all the circumstances of the case and the arguments addressed, the Tribunal, in a very well-reasoned order, came to the conclusion that the order of the Additional Rent Controller was correct in all respects and there was nothing to show that eviction was sought for any mala fide purpose.

(4) On second appeal, Shri Yogeshwar Dayal has very strongly contended that no notice having been given to the tenant terminating the tenancy, the present proceedings for eviction were incompetent. According to him, in the written statement contesting their eviction the tenants had raised a plea of want of notice. In my opinion, this argument is not open to the appellants on second appeal because it was not raised and adjudicated upon before the Rent Control Tribunal. The plea of want of notice, as is well-settled by now, depends on the facts and circumstances of each case and to permit it to be raised on second appeal in the High Court cannot but ordinarily be unjust and prejudicial to the opposite party. Reference at the bar has been made to a Bench decision of the Punjab and Haryana High Court in Sawarj Pal v. Janak Raj, wherein it has been observed that in the case of a. monthly tenancy in the Punjab, in the absence of a specific contract and in the absence of any statutory provision to the contrary, a monthly tenant is entitled to at least 15 day''s notice of eviction before any action for his ejectment can be brought in a competent Court or a Tribunal. Only the principle of justice, equity and good conscience contained in the first part of section 106 of the Transfer of Property Act applies to the Punjab and the technical rule of procedure contained in the second part of that section making it necessary for the 15 day''s notice to terminate with the end of the month of tenancy, cannot be invoked on principles of equity and good conscience. I do not consider it necessary to express any opinion on the point whether or not in Delhi it is necessary to give notice u/s 106, Transfer of Property Act, on grounds of justice, equity and good conscience, as observed in the reported decision. suffice it to say that the plea of want of notice is not open to the appellants at this late stage of the present proceedings.

(5) Shri Yogeshwar Dayal has then contended that no finding has been given by the Tribunal on the extent of accommodation already available to the landlady. He has made a passing reference to a Single Bench decision of the Circuit Bench of the Punjab High Court at Delhi in Surjan Singh v. Bawa Kartar Singh", but that decision nowhere lays down that it is imperative cases, for the Tribunal to actually go into the question of accommodation available with the owner-landlord and come to its own decision whether or not that is sufficient for his needs and requirements. There, the learned Single Judge was concerned with the question of the landlord having no other reasonably suitable residential accommodation and this question was considered in the background of a house belonging to the landlord lying vacant.

(6) Section 14(1) provision (e) of the Delhi Rent Act of 1958 provides the ground for eviction, so far as relevant for our present purposes, that the premises let for residential purposes are required "Bona fide" by the landlord for occupation as a residence for dependents of his family. The expression "Bona fide requires" has been used designedly. Neither the word "desires" nor the word "needs" has been used and this should negative the two extreme views which are not infrequently canvassed in cases arising under this clause. Mere desire or absolute need or necessity are both erroneous approaches on the plain language of this provision. For the purpose of finding the bona fide requirement of the landlord, all relevant facts and circumstances include -ing his status, position, social obligations etc. have to be taken into account as reasonably influencing the individual landlord''s requirements. It is neither feasible nor desirable, and indeed I find it highly impractiable to exhaustively enumerate such facts and circumstances as may apply to all cases, serving as a straight jacket because each individual landlord has his own problems and requirements. His bona fides seems to me to be the crucial test and this, broadly speaking, must be a quescorporation of fact in each case. The area of accommodation in the abstract is thus not conclusive as is sometimes suggested. The hardship to the tenant does not seem to me to be one of the statutory considerations envisaged by the provision in question, though not un often. Courts are tempted to give to this aspect more than its due importance.

(7) The Rent Controller and the Tribunal are ordinarily expected to deal with the points raised and argued before them. If, Therefore, a point is not argued before them as a general rule, they are not expected to raise it suo molu and require the parties to take it up. In the case in hand, the point of the extent of the accommodation available with the landlord does not seem to have been canvassed before the Tribunal on behalf of the appellants. Even in the grounds of appeal before the Appellate Tribunal, the point of the extent of the area of accommodation available with the landlord was not specifically and pointedly taken. Now if that be so, than I find it difficult to allow the appellants to raise it in the present second appeal u/s 39 of the Delhi Rent Act to make a grievance of the Court below having not considered the quescorporation of the precise extent and area of the accommodation available with the landlord for the purpose of determining the question of his bona fide requirement?. This can by no means be considered to involve a substantial question of law within the contemplation of section 39(2) afore- said. As observed in Shri V.N. Sarin v. Major Ajit Kumar Poplai'', a finding that the landlord requires the premises bona fide for his use and for the use of his family members dependent on him, is one of fact and is not open to review in second appeal u/s 39. This decision, it may be pointed out, was affirmed on appeal by the Supreme Court.

(8) For the foregoins, this appeal fails and is dismissed with costs. I, however, grant the appellants two month''s time turn vacating the premises. Execution proceedings may be initiated, but eviction order should not be made before the expiry of two months.